0120101952
09-02-2010
Patricia I. Callins, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Patricia I. Callins,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120101952
Hearing No. 450-2009-00238X
Agency No. HS 08 TSA 005820
DECISION
On April 3, 2010, Complainant filed an appeal from the Agency's March 22, 2010, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Administration Officer at the Agency's Dallas-Fort Worth International Airport facility in Texas.
On August 10, 2008, Complainant filed an EEO complaint alleging that the Agency subjected her harassment on the bases of sex (female) and/or in retaliation for prior protected activity from February 10, 2008 through June 26, 2008. In support of her claim of harassment, Complainant indicated that she has raised over three hundred complaints to management by some forty to fifty individuals at the Agency. In support of her claim of harassment, Complainant indicated that the following events occurred:
1. On February 10, 2008, Complainant asked to prepare a rotation schedule and a Lead (L1) refused to accept her schedule changes.
2. On February 12, 2008, Complainant submitted an incident report to her manager (Manager) regarding the Lead's refusal of her changes.
3. Complainant indicated that a co-worker (CW1) began calling her the "Lead Killer," "The Queen," and "Miss Queen."
4. Complainant indicated that she was accused of being late for breaks;
5. Complainant stated that her coworkers would change her batteries in her personal fan;
6. On March 11, 2008, when Complainant was in the Ladies' restroom, another Lead (L2, male) walked in claiming that the Men's restroom was closed. Complainant reported this event to her supervisor (Supervisor). Following the investigation by the Supervisor, L2 issued an apology.
7. On March 11, 2008, Complainant reported that another Lead (L3) failed to follow standard operating procedures. Complainant indicated that on June 22, 2008, she was reassigned to another location because L3 did not want to work with Complainant.
8. On March 30, 2008, when Complainant stated she was hot, Complainant indicated that a coworker (CW2) stated "someone forgot to taker their Midol."
9. On April 6, 2008, another coworker (CW3) made comments such as: "come on woman, do what I tell you" and "I'm a man, that's what we do."
10. In May 2008, Complainant received her mid-year from the Supervisor which she believed was negative.
11. Complainant indicated that another coworker (CW4) threw baggage at Complainant and on one occasion, hit her foot with it.
12. After Complainant underwent foot surgery in July 2008, Complainant indicated that she required a light duty assignment and the Agency delayed in its response.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on October 21, 2009, and issued a decision on February 27, 2010. As to Complainant's claim of harassment, the AJ determined that Complainant failed to establish a prima facie case of harassment on the basis of sex and/or reprisal. The AJ noted that Complainant alleged several incidents of behavior she regarded as harassment by many individuals within her workplace. The AJ found that Complainant raised these claims of harassment with her management with some regularity. The AJ indicated that the record was clear that there was animosity by some toward Complainant in her workplace. The AJ found, based on the evidence within the record and the testimony presented at the hearing, that the incidents raised by Complainant were normal interactions by Complainant with her coworkers in the workplace. The AJ determined that such events did not rise to the level of creating a hostile work environment such as to interfere with her ability to perform her duties. The AJ also noted that the testimony contradicted some of Complainant's version of events and the Agency alleged that Complainant exaggerated the incidents and comments. However, even taking the events as stated by Complainant, the AJ held that the events were not sufficiently severe or pervasive enough to create a hostile work environment.
The AJ then turned to Complainant's claim of reprisal particularly with regard to her request for light duty following surgery. The AJ determined that the Agency's delay in response to Complainant's request was based on Complainant's failure to turn in medical documentation. Therefore, the AJ determined that Complainant failed to show that she was subjected to retaliatory harassment. Therefore, the AJ concluded that the Agency did not subject Complainant to harassment as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed without specific comment.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
It is well-settled that harassment based on an individual's sex and/or prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on sex and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review of the record, we find that the AJ properly determined that Complainant failed to establish that she was subjected to events which, taken as a whole, created a hostile work environment. Therefore, we concluded that the AJ correctly concluded that Complainant failed to establish her prima facie case of unlawful harassment based on her sex and/or prior protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order implementing the AJ's decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 2, 2010
__________________
Date
2
0120101952
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120101952